Ruskai v. Pistole

United States Court of Appeals
For the First Circuit

No. 12-1392

MARY BETH RUSKAI,

Petitioner,

v.

JOHN S. PISTOLE, Administrator,
Transportation Security Administration,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE TRANSPORTATION SECURITY ADMINISTRATION

Before

Lynch, Chief Judge,
Lipez and Kayatta, Circuit Judges.

Inga S. Bernstein, with whom Monica R. Shah, Naomi R.
Shatz, and Zalkind Duncan & Bernstein LLP were on brief, for
petitioner.
Sydney Foster, Attorney, U.S. Department of Justice Civil
Division, with whom Stuart F. Delery, Assistant Attorney General,
Mark B. Stern, and Sharon Swingle were on brief, for respondent.

December 23, 2014
 KAYATTA, Circuit Judge. As someone with a metallic joint

replacement, Mary Beth Ruskai cannot pass through some security

checkpoints in U.S. airports under current Transportation Security

Administration ("TSA") security protocols without submitting to a

standard pat-down that includes security officials touching areas

around her groin and breasts to look for concealed metallic and

nonmetallic weapons. Having unsuccessfully petitioned TSA to

change its protocols, she asks this court to find that they violate

the Fourth Amendment and federal disability discrimination law, and

to set them aside. For the reasons that follow, we cannot so find.

I. Background

TSA is part of the U.S. Department of Homeland Security

("DHS"). 6 U.S.C. § 203(2). Congress created TSA in response to

the events of September 11, 2001, "and charged it with ensuring

civil aviation security, including the screening of all passengers

and property that move through U.S. airports." Redfern v.

Napolitano, 727 F.3d 77, 80 (1st Cir. 2013); see also 49 U.S.C.

§ 114(d); Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011).

One of TSA's principal jobs is to keep passengers from boarding a

plane with explosives, weapons, or other destructive substances

(hereafter, "weapons"). 49 U.S.C. § 44901.

There are roughly 500 commercial airports in the United

States that each serve over 2,500 passengers per year, with most

larger airports having multiple terminals and, often, multiple

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screening lines within terminals. See Fed. Aviation Admin., Report

to Congress: National Plan of Integrated Airport Systems (NPIAS)

2 0 1 3 - 2 0 1 7 , a t 4 , a v a i l a b l e a t

http://www.faa.gov/airports/planning_capacity/npias/reports/histo

rical/media/2013/npias2013Narrative.pdf. With more than 600

million passengers of all sorts carrying myriad items flying into

and out of these airports each year, see Passengers, Bureau of

T r a n s p . S t a t i s t i c s ,

http://www.transtats.bts.gov/Data_Elements.aspx?Data=1, TSA's job

is a challenging and ever-evolving task.

Planes blown out of the sky in Russia and attempted

bombings on U.S. airliners in recent years have warned TSA that its

screening procedures must be capable of detecting both metallic and

nonmetallic weapons. See 78 Fed. Reg. 18,287 - 18,291 (March 26,

2013). As anyone who frequently flies knows, TSA's primary

strategy for coping with this challenge has been to develop and use

technology: specifically, walk-through Advanced Imaging Technology

scanners ("AIT scanners") that can detect both metallic and

nonmetallic weapons on clothed passengers. Implementation of this

strategy remains a work in progress. In the fall of 2010, TSA

revised one of its Standard Operating Procedures ("SOPs"), called

the Screening Checkpoint SOP, to include additional procedures

aimed at detecting nonmetallic weapons. The new SOP authorized the

use of two types of AIT scanners as the primary methods of

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screening at U.S. airports1, and adopted as a secondary screen a

new "standard pat-down," which is an enhanced form of the

previously used pat-down. Redfern, 727 F.3d at 80. The primary

protocol requires anyone wanting to fly to go through an AIT

scanner or to submit to the new standard pat-down. Id.

The rollout of the new technology as the primary

screening method encountered significant resistance. The AIT

scanners were viewed by many as generating, in effect, a nude

picture of each passenger, many of whom were not inclined to pose

for such pictures as a price of flying. See, e.g., id. TSA worked

to develop privacy software (known as Automated Target Recognition,

or "ATR") for the AIT scanners, such that no screening agent had to

personally examine AIT images for weapons. Congress weighed in as

well, passing the FAA Modernization and Reform Act of 2012, Pub. L.

No. 112-95, § 826, 126 Stat. 11, 132, requiring TSA to ensure that

all passenger-screening AIT scanners employed ATR by June 2012

(later extended to May 2013). Redfern, 727 F.3d at 81.

TSA has continued to expand its use of AIT scanners. Its

efforts were set back when the manufacturer of one of the two types

of AIT scanners TSA had initially deployed, the so-called

backscatter scanner, was evidently unable to develop adequate ATR

1
TSA had begun using some AIT scanners as secondary
screening tools for selected passengers at some airports in 2007.
Redfern, 727 F.3d at 80.

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capability, so backscatter scanners have been removed from airport

operation. Id. Nevertheless, the government asserts in its brief

that TSA "has deployed more than 740 AIT machines at almost 160

airports and anticipates deploying approximately 80 additional

machines by 2015." Even so, there remain many screening points

that yet lack AIT scanners, or where they are not in use full-time.

Ruskai's challenge in this case concerns TSA's protocol for those

checkpoints.

The primary screening device at checkpoints lacking AIT

scanners is the walk-through metal detector ("WTMD"). In other

words, at those checkpoints, TSA effectively does not screen most

passengers' bodies for nonmetallic weapons, and will not do so

until AIT scanners are installed. Suffice it to say, TSA credibly

claims to be intent on reducing the number of such checkpoints.

There are several groups of passengers for whom TSA

relies on screening techniques other than (or in addition to) the

WTMD and AIT scanners, including people who cannot medically go

through an AIT scanner or WTMD, who alarm either primary screening

machine, or who are randomly selected for additional screening.

Many of those people are subject to the standard pat-down, which

Ruskai describes as involving a TSA agent touching around her

breasts, feeling inside her waistband, and running a hand up the

inside of each thigh until reaching the groin. Others (including

children, the elderly, individuals selected for random additional

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screening, and those screened by opposite-gender TSA personnel)

receive a modified, more limited, version of the standard pat-down.

Additionally, TSA has opted to impose more limited

screening burdens on passengers whom it confirms are part of TSA's

PreCheck program. As described in the briefing, PreCheck offers

passenger members "expedited screening in designated lanes if they

have been cleared for such screening based on certain background

checks conducted prior to their arrival at the airport[,]" and a

more limited pat-down in the event that the passenger alarms a

WTMD.

Ruskai, whose job requires her to fly frequently, has had

three joints replaced, and at least one of her replacement joints

is metal. As such, she triggers an alert when she walks through a

WTMD. If, while traveling, she proceeds through a PreCheck

screening lane, Ruskai, who is a PreCheck member, is supposed to

receive the more limited pat-down following her unsuccessful pass

through the WTMD. As discussed at greater length below, the

government now also claims that Ruskai may receive the more limited

pat-down, even in non-PreCheck lanes, if a boarding pass scanner

confirms her PreCheck status. (Ruskai disputes how limited these

"limited" pat-downs really are.) But if the checkpoint has no

PreCheck lane, or cannot verify Ruskai's PreCheck status, Ruskai is

subject to the standard pat-down. She objects to this procedure,

finding it "stressful," "invasive," and "extremely unpleasant."

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While many people may have less sensitivity to the indignities of

the search, certainly Ruskai is not unusual in finding it invasive

and disturbing, as has been made very clear to TSA at, among other

things, congressional hearings.

Ruskai's principal argument is, simply stated, as

follows: since the only reason she requires a follow-up search is

that she trips the WTMD, TSA should search her only for metal, and

it should conduct such a metal-only search using a hand-held metal

detector "wand" ("HHMD"), supplemented by inspection of her medical

documentation of the implant and a pat-down of only the area to

which the HHMD alerts. TSA's refusal to restrict its search in

this manner, she claims, constitutes an unreasonable search under

the Fourth Amendment, and violates section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794.

II. Jurisdiction and Timeliness

We begin by confirming that we have jurisdiction to

consider Ruskai's petition for review. Under 49 U.S.C. § 46110,

with certain exceptions,

a person disclosing a substantial interest in
an order issued by the Secretary of
Transportation (or the Under Secretary of
Transportation for Security with respect to
[certain] security duties and powers . . .) in
whole or in part under [Part A of subtitle VII
of Title 49 of the U.S. Code] may apply for
review of the order by filing a petition for
review . . . in the court of appeals of the
United States for the circuit in which the
person resides . . . .

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 Neither party disputes that TSA's security protocol and

refusal to grant Ruskai's requested accommodation constitute a

final order reviewable by this court. We agree. See Blitz v.

Napolitano, 700 F.3d 733, 739-40 (4th Cir. 2012). Cf. Gilmore v.

Gonzales, 435 F.3d 1125, 1133 (9th Cir. 2006) (TSA security

directive is a reviewable "order"); Aviators for Safe & Fairer

Regulation, Inc. v. F.A.A., 221 F.3d 222, 225 (1st Cir. 2000)

(noting that the term "order" is read "expansively" in section

46110).

A petition for review "must be filed not later than 60

days after the order is issued[;]" late petitions are permitted

"only if there are reasonable grounds for not filing by the 60th

day." 49 U.S.C. § 46110(a). The final TSA letter denying Ruskai's

request was dated January 19, 2012, but postmarked February 3. She

filed for review on April 2--more than 60 days after the letter was

written, but less than 60 days after it was sent. We asked the

parties to brief whether Ruskai's petition was timely. They agree

that it was, and so do we. See, e.g., Avia Dynamics, Inc. v.

F.A.A., 641 F.3d 515, 519 (D.C. Cir. 2011) (concluding that

"issuing" means making a decision publicly available);

Americopters, LLC v. F.A.A., 441 F.3d 726, 733 & n.5 (9th Cir.

2006).

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 III. The Record

We turn next to the record, which for three reasons is

somewhat unusual.

First, although this petition calls for review of an

agency order, the order here was the result of informal agency

action, not an administrative hearing or public notice and comment.

Starting in early 2011, Ruskai submitted a series of complaints to

TSA about being repeatedly subjected to pat-downs. She found TSA's

responses inadequate, and eventually filed a complaint with DHS's

Office for Civil Rights and Civil Liberties, claiming that the

searches violated her Fourth Amendment rights and discriminated

against her on account of her disability. Nearly nine months

later, DHS declined to open an investigation and directed any

further inquiries to TSA's Office of Disability Policy and

Outreach. On January 19, 2012, a TSA "policy advisor" wrote to

Ruskai, noting that TSA could not effectively investigate her

claims at that late date, but nonetheless rejecting her request

that she be offered modified security screening procedures.

Following that denial, Ruskai filed a petition for review with this

court. The parties have given the court an administrative record,

which, it seems, was largely compiled by TSA based on its records

at the time it rejected Ruskai's requests.

Second, much of the record is sealed, with some portions

unavailable even to Ruskai's counsel. Most of that sealing is

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because TSA exercised its authority to designate certain

information Sensitive Security Information, and so limit its

dissemination. See 49 C.F.R. pts. 15 and 1520.

Third, the underlying facts are not static, as TSA

continues to pursue its goal of expanding its use of AIT scanners

and its PreCheck program.

As a result of these factors, both parties have sought to

supplement the record before this court.

A. Ruskai's Motion to Supplement the Record

Before oral argument, Ruskai moved to supplement the

administrative record by adding an affidavit about her screening

experiences. Ruskai argues we should consider her statement

because her side of the story is not well reflected in the current

record only because TSA failed to investigate her initial

complaints. Cf. Cousins v. Sec'y of the U.S. Dep't of Transp., 880

F.2d 603, 610 (1st Cir. 1989) (noting that APA review is normally

limited to the administrative record, but petitioners are not

prejudiced as they may contribute to the administrative record

during the agency proceedings). The government declined to take a

position on her request, and has waived any objection by

affirmatively relying without objection on Ruskai's affidavit;

accordingly, we grant the motion. Cf. WildWest Inst. v. Bull, 547

F.3d 1162, 1176 (9th Cir. 2008) (maintaining that a court may

"consider extra-record materials (1) when necessary to determine

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whether the agency considered all relevant factors in making its

decision; (2) when the agency has relied on extra-record materials;

(3) when necessary to explain technical terms or complex subject

matter; or (4) when the agency has acted in bad faith"). Regarding

Ruskai's brief, however, we note that simply because information is

available on the internet, and cited in a brief, does not

automatically render it either evidence or part of the

administrative record.

B. The Government's Rule 28(j) Letter

After oral argument, the government filed a citation of

supplemental authority under Federal Rule of Appellate Procedure

28(j), informing us that TSA recently expanded the PreCheck

program. Essentially, the government claims that if a TSA official

confirms (using technology used to scan boarding passes) that a

passenger qualifies for TSA PreCheck for a given flight, they can

receive PreCheck security treatment even in normal screening lanes.

Ruskai objects both to the use of Rule 28(j) to introduce this new

evidence and to the government's characterization of the

information.

Rule 28(j) provides that "[i]f pertinent and significant

authorities come to a party's attention . . . after oral argument

but before decision . . . [the] party may promptly advise the

circuit clerk by letter . . . setting forth the citations." Fed.

R. App. P. 28(j). Generally, while 28(j) is not strictly limited

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to offering authorities that did not exist at the time of briefing

or oral argument, it should not be used to introduce new arguments

or new evidence. United States v. Rodriguez-Lozada, 558 F.3d 29,

38 n.4 (1st Cir. 2009); 16AA Charles Alan Wright, Arthur R. Miller

et al., Federal Practice and Procedure: Jurisdiction § 3974.6 (4th

ed.).

We have sometimes acknowledged such factual submissions,

however, at least where they raise a question of mootness. See,

e.g., Redfern, 727 F.3d at 83 (where both parties agreed in

substance to the facts in the government's Rule 28(j) letter,

seeing "no difficulty" in taking judicial notice of those facts and

finding the case moot); United States v. Brown, 631 F.3d 573, 580

(1st Cir. 2011) (considering mootness after the government informed

the court by Rule 28(j) letter that defendant was out on supervised

release). Cf. Pleasures of San Patricio, Inc. v. Mendez-Torres,

596 F.3d 1, 5 (1st Cir. 2010) (noting that the parties had not

filed a Rule 28(j) letter on the status of related litigation, and

so the court could not conclusively rule that the case before it

was moot). Although the parties do not address mootness, we are

obliged to consider the issue sua sponte. See Overseas Military

Sales Corp., Ltd. v. Giralt-Armada, 503 F.3d 12, 16 (1st Cir.

2007). Insofar as Ruskai seeks to enjoin TSA's SOP as applied to

her, any change in the protocol could materially impact her

entitlement to relief. The new SOP does not, however, moot the

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entire dispute, as it is unclear how many airports and individual

checkpoints are affected by the revised policy.

In any event, the government has previously and

consistently maintained that Ruskai's is a "shrinking problem,"

because TSA is trying both to expand the PreCheck program and to

increase the number of passengers screened through AIT scanners,

subject to resource and process constraints. This new information

is merely consistent with those prior representations. Also,

Ruskai does not challenge the bare fact that PreCheck is being

expanded. We therefore accept the government's representation,

though it itself is of little relevance to our review because the

government has offered few details on implementation.

C. Ruskai's Second Motion to Supplement

Ruskai more recently filed a second motion to supplement

the record. In this second motion, she includes her own

supplemental affidavit and the affidavit of an observer who

witnessed her proceed through security. She asserts that, on six

trips that she took since January 2014 (when oral argument was held

in this case), she was in fact able to access PreCheck entry, but

on four of those occasions (when AIT scanners were unavailable) she

was still subjected to a pat-down that, she claims, was more

invasive than previous PreCheck limited pat-downs she had received,

and which made her "very uncomfortable." Accordingly, she now

claims, "there is little distinction" between PreCheck limited pat-

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downs and standard pat-downs. The government takes no position on

this motion. We allow its filing, again while recognizing its

limited relevance because the agency decision on review in this

case includes no challenge by Ruskai to the limited pat-down used

under the PreCheck program.

IV. Standard of Review

In assessing Ruskai's challenge to TSA's security

procedures, our review is limited to objections she raised before

the agency, unless she can show "a reasonable ground for not making

the objection" to TSA first. 49 U.S.C. § 46110(d). TSA's findings

of fact are conclusive "if supported by substantial evidence." Id.

§ 46110(c). Because section 46110 does not specify a standard of

review for non-factual determinations, the Administrative

Procedures Act ("APA") fills that gap, such that we review

questions of law de novo and set aside TSA's decision if it is

"arbitrary and capricious." 5 U.S.C. § 706(1). Under that

standard, we assess whether the "agency has examined the pertinent

evidence, considered the relevant factors, and articulated a

satisfactory explanation for its action including a rational

connection between the facts found and the choice made." Penobscot

Air Servs., Ltd. v. F.A.A., 164 F.3d 713, 719 (1st Cir. 1999)

(internal quotation and alteration marks omitted). We also set

aside an agency decision if it is "contrary to constitutional

right, power, privilege or immunity" or "otherwise not in

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accordance with law." 5 U.S.C. § 706 (1), (2). Ruskai's arguments

to us predominantly invoke these latter tests. She asserts that

the Screening Checkpoint SOP accords with neither the Fourth

Amendment nor the Rehabilitation Act.

V. Analysis

A. Fourth Amendment

The Fourth Amendment provides that "[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause." U.S. Const.

amend. IV. In most cases, reasonableness "requires a showing of

probable cause," but that standard "is peculiarly related to

criminal investigations and may be unsuited to determining the

reasonableness of administrative searches where the Government

seeks to prevent the development of hazardous conditions." Bd. of

Educ. v. Earls, 536 U.S. 822, 828-29 (2002) (citations and internal

quotation marks omitted); see also Vernonia Sch. Dist. 47J v.

Acton, 515 U.S. 646, 652-53 (1995) (warrantless searches may be

justified by needs beyond ordinary law enforcement); Nat'l Treas.

Emps. Union v. Von Raab, 489 U.S. 656, 667-68 (1989). The courts

of appeals treat transit security screenings as "administrative" or

"special needs" searches, which may be conducted, at least

initially, without individualized suspicion, a warrant, or probable

cause. See, e.g., Von Raab, 489 U.S. at 675 n.3; Elec. Privacy

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Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 10 (D.C.

Cir. 2011); United States v. Aukai, 497 F.3d 955, 959-60 (9th Cir.

2007) (en banc); Cassidy v. Chertoff, 471 F.3d 67, 74-75 (2d Cir.

2006)(Sotomayor, J.); United States v. Hartwell, 436 F.3d 174, 177

(3d Cir. 2006)(Alito, J.); see also United States v. De Los Santos

Ferrer, 999 F.2d 7, 9 (1st Cir. 1993) (describing airport luggage

searches as administrative searches).

In a Fourth Amendment challenge to a search like that at

issue here,2 we assess the search's reasonableness by balancing

"the public interest in the [TSA's search] program against the

privacy concerns implicated by the" search. See Von Raab, 489 U.S.

at 679. Although different circuits have used variations on this

test,3 we focus on "the gravity of the public concerns," "the

2
The parties do not cross swords over whether the screening
process is one search or several, and generally seem to treat it as
one. We proceed accordingly. Cf. Hartwell, 436 F.3d at 177.
3
See, e.g., Elec. Privacy Info. Ctr., 653 F.3d at 10
(weighing "on the one hand, the degree to which [a search] intrudes
upon an individual's privacy and, on the other, the degree to which
it is needed for the promotion of legitimate governmental
interests"(quoting United States v. Knights, 534 U.S. 112, 118–19
(2001)); MacWade v. Kelly, 460 F.3d 260, 268-69 (2d Cir.
2006)(assessing property searches on the subway by weighing factors
including "(1) the weight and immediacy of the government interest;
(2) the nature of the privacy interest allegedly compromised by the
search; (3) the character of the intrusion imposed by the search;
and (4) the efficacy of the search in advancing the government
interest" (citations and internal quotation marks omitted));
Hartwell, 436 F.3d at 178-79 (weighing "the gravity of the public
concerns served by the seizure, the degree to which the seizure
advances the public interest, and the severity of the interference
with individual liberty" (citations and internal quotation marks
omitted)); United States v. Marquez, 410 F.3d 612, 616 (9th Cir.

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degree to which the [search] advances the public interest," and

"the severity of the interference with individual liberty."

Illinois v. Lidster, 540 U.S. 419, 427 (2004); see Hartwell, 436

F.3d at 178-79 (applying these considerations in the airport

checkpoint context). While we will not require the government to

adopt the least intrusive practicable alternative, there must be a

fairly close fit between the weight of the government's interest in

searching and the intrusiveness of the search--that is, the search

must be a "reasonably effective means" for furthering the important

government interest. See Earls, 536 U.S. at 837. With these

principles in mind, we turn to the relevant facts in this case.

1. Ruskai's Privacy Interest and the Intrusiveness of
the Search

Many of us have at some point found ourselves subject to

a TSA pat-down--including the standard pat-down challenged here.

Accepted as mildly annoying or uncomfortable for some, the standard

pat-down is experienced as quite an intrusive indignity by many

others, including petitioner Ruskai. The procedure she describes

being subjected to has many similarities to the Supreme Court's

description of a pat-down for weapons in Terry v. Ohio, 392 U.S. 1

(1968), involving an officer "feel[ing] with sensitive fingers

2005) amended 2005 WL 1661572 (9th Cir. July 18, 2005) (deeming an
airport search reasonable "if: (1) it is no more extensive or
intensive than necessary, in light of current technology, to detect
weapons or explosives; (2) it is confined in good faith to that
purpose; and (3) passengers may avoid the search by electing not to
fly" (citations and internal quotation marks omitted)).

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every portion of the prisoner's body . . . [including his] arms and

armpits, waistline and back, the groin and area about the

testicles, and entire surface of the legs down to the feet." Id.

at 17 n.13 (quoting L. L. Priar & T. F. Martin, Searching and

Disarming Criminals, 45 J. Crim. L., Criminology & Police Sci. 481

(1954)). The Court called the search "a serious intrusion upon the

sanctity of the person, which may inflict great indignity and

arouse strong resentment" which "is not to be undertaken lightly."

Id. at 17. While Ruskai fairly relies on Terry to label the

standard pat-down significantly intrusive, the comparison fits less

closely than she claims. Under TSA protocols, generally males

search males and females search females; parts of the search are

conducted with the back of the officer's hands rather than the

palms or open fingers; privacy is offered; and the administrative

nature of the search is much less accusatory, especially as members

of the traveling public have become inured to the conduct of

precautionary searches that rarely reveal any unlawful activity.

Cf. Hartwell, 436 F.3d at 180. We nevertheless certainly agree

that the search is objectively intrusive, although not everyone

will necessarily find it as objectionable as Ruskai does.

2. The Nature of the Government's Interest

On the other side of the balance, the government retains

two key interests implicated by Ruskai's challenge to its current

protocol.

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 First, and most obviously, TSA asserts a critical

interest in keeping both metallic and nonmetallic weapons off

commercial flights. It observes that, in recent years, nonmetallic

explosives have become one of the greatest threats to aviation

security. 78 Fed. Reg. 18287-01, 18291 (March 26, 2013). For

example, on December 22, 2001, a terrorist attempted to detonate a

nonmetallic bomb concealed in his shoe. Id. In 2006, terrorists

in the United Kingdom plotted to bring liquid explosives onto an

aircraft where they would then construct and detonate a bomb while

in flight. Id. Three years later, an Al Qaeda plot to blow up an

American aircraft using a nonmetallic explosive device hidden in a

suicide bomber's underwear was foiled. Id. Worldwide, attempted

terrorist actions involving nonmetallic explosives have continued.

Id.

Second, TSA takes as its relevant starting point the

undisputed fact that, when a person triggers an alert at a WTMD,

TSA needs to search them in some manner, certainly to look for the

metal that triggered the alarm. Given that a search is required in

such situations, TSA suggests that it has an interest in using a

search protocol designed to identify both metallic and nonmetallic

weapons--a protocol that it also uses at AIT checkpoints when a

passenger declines to proceed through an AIT scanner. In adopting

the new screening checkpoint SOP, TSA highlighted the benefits of

streamlining its operations in a forward-looking manner that

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focuses training and resources on the types of searches that it

already uses to search for both metallic and nonmetallic weapons.

As a massive agency with roughly 60,000 employees and

responsibility for security at over 450 airports, What is TSA?,

Transp. Sec. Admin., http://www.tsa.gov/about-tsa/ideafactory (last

visited Oct. 16, 2014), TSA has a significant interest in adopting

protocols that can be uniformly and efficiently administered.4

3. Balancing the Interests

Reduced to their essence, Ruskai's Fourth Amendment

arguments largely hinge on four points: (1) TSA must limit its

search of Ruskai to a search for metallic weapons when she sets off

a WTMD; (2) TSA has means of advancing its interests other than by

patting down passengers who alarm a WTMD; (3) TSA cannot claim to

have a substantial need to pat down passengers for nonmetallic

weapons because it allows most passengers to board planes with just

a WTMD search when AIT scanners are unavailable (and does not

require pat-downs at foreign preclearance airports); and (4) the

method TSA uses to determine who receives a standard pat-down is

4
Ruskai criticizes TSA's reliance, in adopting the revised
protocols, on the idea that (largely) replacing HHMDs with standard
pat-downs helps TSA keep its procedures "streamlined and
effective," claiming that the efficiency rationale is unproven and
"insufficient to warrant the repeated use of the [standard] pat-
down on an extremely low-risk segment of the traveling public." In
our view, however, the efficiency and training advantages of aiming
to reduce the number of different screening protocols, and focusing
on those that will be of the most use in the future, are fairly
obvious.

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unreasonable. We address these arguments in turn.

a. Scope of the Search

Ruskai reasons that because she is pulled out of line for

a search only because her implants trigger the WTMD, TSA can search

her only for metal, which it can do adequately using a HHMD.

Otherwise, she claims, the search is not "reasonably related in

scope" to the circumstances giving rise to it. Terry, 392 U.S. at

20. In support of this argument, she relies most heavily on the

Second Circuit's opinion in United States v. Albarado, 495 F.2d 799

(2d Cir. 1974). In that case, when the defendant was patted down

after alarming a WTMD, officers uncovered a package of counterfeit

bills wrapped in aluminum foil. Id. at 802. The Second Circuit

concluded that the defendant should have had an opportunity to

divest himself of any metallic objects, be searched with a HHMD, or

be subjected to some other similarly less-intrusive procedure to

find the offending metal before he was patted down. Id. at 807-10.

That court insisted that a WTMD alarm does not afford a license to

search for anything, though it did acknowledge that officers may

sometimes investigate nonmetallic items, due to the risk of, e.g.,

plastic explosives. Id.

Forty years of experience diminish any persuasive force

we might have otherwise assigned to Albarado's Fourth Amendment

analysis of airport searches. Albarado rests on a presumption that

the principal risk is metallic weapons, and thus implies that

-21-
searches for nonmetallic weapons must be limited to situations in

which airport security otherwise "comes lawfully upon a container

which may conceal such items," id. at 809, or more generally when

"specific, articulable facts exist to support" a reasonable belief

that a danger exists, id. at 810. Taken to its logical conclusion,

those presumptions would mean that TSA could not search

administratively for nonmetallic weapons without individualized

suspicion, at least if there were no AIT technology available. We

doubt that the Albarado court itself would so hold if it had the

benefit of considering TSA's well-supported findings that

nonmetallic weapons are now the principal threat.

More recent precedent recognizes the threat of

"explosives in liquid or powder form." Elec. Privacy Info. Ctr.,

653 F.3d at 10. The Eleventh Circuit recently observed: "Numerous

. . . incidents of aviation terrorism have involved nonmetallic

explosives." Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1180

(11th Cir. 2014). "Metal detectors cannot alert officers to

nonmetallic explosives, and the United States enjoys flexibility in

selecting from among reasonable alternatives for an administrative

search." Id. at 1181.

Contrary to Ruskai's unsupported assertions, the fact

that a WTMD alerts TSA to Ruskai's metallic implants does not mean

that she is less likely to have a nonmetallic weapon (though the

record is equivocal on whether it makes it any more likely,

-22-
either). The WTMD alert thus does not, we conclude, limit the

number or type of TSA's interests in conducting a search. Instead,

the WTMD alarm explains why Ruskai is one of the passengers whom

TSA selects for a search sufficient to locate the principal weapons

with which it is concerned. Whether that selection criterion is a

reasonable one we discuss at greater length below.

b. Alternative Means

Ruskai urges that we find TSA's standard pat-down policy

unconstitutional because TSA could employ a less intrusive search

that still furthers its legitimate interests. Although Ruskai is

correct that courts sometimes consider alternatives to the

challenged search or seizure (as in Albarado, or, e.g., Blackburn

v. Snow, 771 F.2d 556, 566 (1st Cir. 1985) (noting the existence of

alternative adequate security measures in invalidating a blanket

policy of strip searching prison visitors)), the alternatives'

significance is circumscribed, as the "Supreme Court has repeatedly

stated that reasonableness under the Fourth Amendment does not

require employing the least intrusive means to accomplish the

government's ends." Cassidy, 471 F.3d at 80 (internal quotation

marks omitted). In any event, we are not convinced that Ruskai has

posited any truly workable alternative.

i. Modifications to PreCheck

Ruskai's first proposal is to modify TSA's PreCheck

program. She argues that even when a checkpoint lacks the

-23-
technology needed to confirm PreCheck status, she should be able to

show TSA personnel medical records confirming she has an implant.

But the security risks of requiring TSA to simply accept medical

documentation as proof that Ruskai, or any other passenger, is not

carrying a weapon are obvious. Moreover, Ruskai is already a

PreCheck member, and did not clearly challenge the search protocol

for PreCheck passengers in the administrative proceeding, or in her

petition for review.5 As PreCheck expands, her cause for complaint

shrinks. And if a checkpoint is not able to confirm PreCheck

status, it would seem obvious that it could not confirm the

authenticity of whatever medical documents Ruskai might show.

Ultimately, the problem is that there is not yet PreCheck

capability at all checkpoints where there are no AIT scanners.

TSA, however, agrees with Ruskai that PreCheck should be more

widely available. Indeed, the agency represents that its current

5
At oral argument, Ruskai contended that the more limited
PreCheck pat-down is also unacceptable, and continued that theme in
her second motion to supplement the record. Her opening brief did
not distinguish between the standard and PreCheck pat-downs, and so
arguably encompassed both. However, in her reply brief, Ruskai
cited the more limited PreCheck pat-down as being an alternative
that is "more respectful of passengers' civil rights," and
responded to the government's argument about the more limited
PreCheck pat-down by asserting that "there is no reason why she
should not be able to show the card at every security lane . . .
and receive the same benefit that she would in a PreCheck lane."
Accordingly, we consider her objection to the PreCheck limited pat-
down raised for the first time at oral argument, and so forfeited.
See Fed. R. App. P. 28(a); Piazza v. Aponte Roque, 909 F.2d 35, 37
(1st Cir. 1990)("Except in extraordinary circumstances not present
here, a court of appeals will not consider an issue raised for the
first time at oral argument.").

-24-
screening program calls for continuous expansion of its use of AIT

scanners and PreCheck. TSA's current use of both techniques and

its ongoing efforts to expand their availability persuade us that

it would make no sense to require TSA also to develop a system for,

in effect, using medical documents in lieu of PreCheck.6

ii. Resuming Reliance on HHMDs

Ruskai suggests that TSA could simply use HHMDs (and

perhaps a limited follow-up pat-down) to confirm that the only

offending metal on her person is in her joints--just as it did

prior to 2010. In particular, she emphasizes that this must be a

reasonable alternative, because it is the screening approach taken

in several Canadian airports that the U.S. government has included

in the preclearance program.

As to the foreign preclearance airports, the government

contends that it has not yet fully completed the process of

certifying that the Canadian airports to which petitioner refers

provide a fully adequate level of security screening. (Of course,

the government seems to allow passengers to fly into the United

States after such screenings, and so must consider their procedures

at least minimally adequate.) Regardless, foreign airports involve

additional legal and political exigencies. In our view, in

deciding how to allocate its limited resources, TSA may reasonably

6
Of course, a different situation would be presented should
TSA change its program by abandoning its efforts to expand the use
of these tools.

-25-
choose not to require foreign airports to use all U.S. procedures

without compromising as a constitutional matter its ability to

require somewhat more stringent procedures domestically.

In any event, use of HHMDs is simply not an alternative

means of finding nonmetallic weapons. Rather, in proposing this

alternative, Ruskai is simply repeating her scope-of-search

argument that TSA has no legitimate reason to search her for

nonmetallic weapons. We have rejected that argument because TSA

has reason to search every passenger for nonmetallic weapons.

iii. Additional Suggested Modifications

As for the other modifications suggested by Ruskai,

including her specific requested revisions to the pat-down

protocol, we cannot address them at length without discussing

sealed material. Suffice it to say that we have reviewed the

record (public and otherwise) and are satisfied that Ruskai's

requested changes to the protocol are not so obviously practicable

and effective as to render unreasonable TSA's decision to reject

them. In each instance, moreover, the modifications Ruskai

proposes would undercut the efficiency and streamlining interests

cited by TSA. "[T]he United States enjoys flexibility in selecting

from among reasonable alternatives for an administrative search."

Corbett, 767 F.3d at 1181. In Michigan Dep't of State Police v.

Sitz, the Supreme Court explained that "Brown was not meant to

transfer from politically accountable officials to the courts the

-26-
decision as to which among reasonable alternative law enforcement

techniques should be employed to deal with a serious public

danger," and that "for purposes of Fourth Amendment analysis, the

choice among such reasonable alternatives remains with the

governmental officials who have a unique understanding of, and a

responsibility for, limited public resources." 496 U.S. 444, 453-

454 (1990); see also City of Ontario, Cal. v. Quon, 560 U.S. 746,

764 (2010) ("Even assuming there were ways that [the officers]

could have performed the search that would have been less

intrusive, it does not follow that the search as conducted was

unreasonable."). Moreover, Ruskai admits that some of her proposed

alternatives would not satisfy her own view of the Fourth Amendment

standard.

In any event, this is not a case in which the government

has two alternative methods of searching Ruskai for nonmetallic

weapons, and simply opts for the more intrusive. The current state

of affairs is that at many airport security checkpoints, TSA has no

choice on how to search for nonmetallic weapons (when it chooses to

do so--a point we address further below). It either uses a

pat-down, or it does not search for nonmetallic weapons at all.

c. Effectiveness and Underinclusiveness

Ruskai contends that the government cannot prove that the

new screening protocols are sufficiently effective even to warrant

their adoption. She notes that the Fourth Amendment requires the

-27-
search to be calibrated to the relevant risk, and that TSA is

required to use risk-informed evaluations of, and choices about,

transportation security. See generally, e.g., 49 U.S.C. § 114(s).

She maintains that TSA has not conducted sufficient studies to

demonstrate the effectiveness of the new protocols--nor can it even

collect the relevant data, because an individual alarming a WTMD

will pass through to the sterile area of an airport after a "clean"

pat-down, regardless of whether the underlying metal is found.

We acknowledge that there is not the same sort of

effectiveness data in the record here as courts have examined in,

e.g., sobriety checkpoint cases. Cf. Sitz, 496 U.S. at 453-55 (in

considering the lawfulness of seizing cars at a sobriety

checkpoint, emphasizing that "effectiveness" is part of the inquiry

into "the degree to which [a] seizure advances the public

interest," and describing as constitutional various checkpoints

with detection rates of .5% - 1.6%). Although we cannot discuss it

at length, there is more support in the record than that cited by

Ruskai for the government's claim that it does examine the

effectiveness of its security measures. (Moreover, an important

function of the standard pat-downs--deterrence--is notoriously

difficult to quantify. Cf. MacWade v. Kelly, 460 F.3d 260, 274-75

(2d Cir. 2006).) And as noted above, TSA is already taking steps

to implement a more risk-informed screening protocol. Finally,

Ruskai has adequately shown neither that section 114 is privately

-28-
enforceable nor why we should accept it as the relevant Fourth

Amendment standard.

A variation on the effectiveness theme is Ruskai's

argument that the screening SOP is, essentially, irrationally

underinclusive, and so cannot be considered a reasonably effective

tool for combating transit terrorism. If TSA were patting down

most every passenger when AIT scanners are not available, the

foregoing discussion would likely lead easily to the rejection of

Ruskai's Fourth Amendment claim. TSA does not, however, pat down

most passengers when AIT scanners are not available. To the

contrary, most passengers who clear the WTMDs, which search only

for metal, board airplanes without any further search of their

person. The resulting and significant underinclusiveness of TSA's

use of pat-downs raises two questions: Why does TSA not pat down

most passengers at checkpoints lacking AIT scanners or PreCheck?

And given that it does not, why does TSA pat down any passengers

(e.g., Ruskai)? These questions capture the core of Ruskai's

argument.

The answer to the first question appears to be that the

prospect of patting down all or most passengers individually is

like the prospect of stopping all cars on all roads at sobriety

checkpoints: The scale of the operation generates collateral costs

that are not present when a subset of travelers is searched. In an

airport, that cost would naturally include a large expense in

-29-
manpower and much longer lines and delays.

As for the second, more difficult question, TSA has two

reasons to search those passengers who trigger a WTMD alert for

both metallic and nonmetallic weapons, even though it does not

search passengers who do not trigger a WTMD alert for nonmetallic

weapons. First, since it must search such passengers for metallic

weapons anyway, searching them for nonmetallic weapons as well

offers an incremental benefit with low incremental cost. Second,

TSA has an efficiency interest in training its personnel in a

limited number of techniques, and pat-downs are the primary

alternative to AIT scanners.

Ruskai does not argue that no one should be screened by

a standard pat-down. Rather, she says that the standard pat-down

should only be employed when there exists a suspicion that the

particular person to search may pose an atypical risk of having a

nonmetallic weapon. In our view, in the context of administrative

or special needs searches, the Supreme Court has not required the

degree of precision tailoring advocated by Ruskai. Take, for

example, Earls, 536 U.S. at 836-37. There, the Court rejected a

Fourth Amendment challenge to a requirement that middle and high

school students submit to a urine drug test in order to engage in

extracurricular activities.7 The Court rejected the argument that

7
Although the Court noted that "[u]rination is an excretory
function traditionally shielded by great privacy," the degree of
intrusion on one's privacy involved in taking such a sample depends

-30-
such tests could only be given on individualized suspicion, or

after the school demonstrated that there was a drug problem of some

type among the group chosen to be tested. Id. Rather, it relied

on the contention that "the safety interest furthered by drug

testing is undoubtedly substantial for all children," and concluded

that "testing students who participate in extracurricular

activities is a reasonably effective means of addressing the School

District's legitimate concerns in preventing, deterring, and

detecting drug use," notwithstanding the suggestion that the policy

may have been overinclusive. Id. at 836-38.

We acknowledge that Earls is not on all fours with this

case--there, the Court specifically relied on the custodial

responsibilities of a public school, and characterized the search

as negligibly intrusive. Id. at 830, 833; cf. Hartwell, 436 F.3d

at 178 n.7 (suggesting that the "special needs" search at issue in

Earls was distinct from administrative searches at airports). We

nonetheless find its guidance instructive, and note that while the

search here is undoubtedly more intrusive, given the scale of the

upon the collection procedures. Id. at 832 (internal quotation
marks omitted). In that case, a "faculty monitor wait[ed] outside
the closed restroom stall for the student to produce a sample and
[had to] listen for the normal sounds of urination in order to
guard against tampered specimens" and then sent the sample for
testing. Id. (internal quotation marks omitted). This procedure,
the Court concluded, constituted a "negligible" intrusion, and the
invasion of students' privacy was "not significant." Id. at 833-34.
But cf. id. at 841 (Breyer, J, concurring)(noting that not everyone
might find the procedure negligibly intrusive).

-31-
risk, the safety interests at stake are also dramatically more

acute. Cf. MacWade, 460 F.3d at 269 (discussing Earls and noting

that the Supreme Court "never has implied--much less . . .

held--that a reduced privacy expectation is a sine qua non of

special needs analysis" and so rejecting the proposition that a

search of baggage on the subway is only permissible where the

traveler has a diminished expectation of privacy). Moreover, since

the government "may deal with one part of a problem without

addressing all of it," Erznoznik v. City of Jacksonville, 422 U.S.

205, 215 (1975), "[t]he Supreme Court has been skeptical of

challenges to the constitutionality of searches under the Fourth

Amendment that suggest that a security policy's randomness or

insufficient thoroughness contributes to its constitutional

deficiencies." Cassidy, 471 F.3d at 86.

In sum, precedent teaches that a school can conduct

administrative searches for drugs by requiring urine tests of fewer

than all students who might be equally prone to use drugs, and

police may conduct sobriety checkpoints on one road while not

stopping drivers on most others. So too, here, the fact that TSA

searches only some passengers for nonmetallic weapons where it

lacks an AIT scanner does not render the searches unconstitutional.

And this is particularly so where TSA has a reasonable explanation

for why it searches for nonmetallic weapons on persons it must

search anyhow.

-32-
 Clearly, neither Congress nor TSA finds the current

underinclusiveness in screening passengers for nonmetallic weapons

to be acceptable in the long run--hence TSA's ongoing expansion of,

among other things, AIT deployment. The cost being incurred to

install AIT scanners, for example, makes concrete the very

substantial weight assigned by Congress to the threat of

nonmetallic explosives. And, as discussed above, even though

pragmatic and efficiency considerations may outweigh (in TSA's

judgment) its interest in screening every non-AIT-screened

passenger for nonmetallic weapons, there is no dispute that TSA

will have to conduct some follow-up search on individuals who

cannot or do not pass through a WTMD without setting it off. TSA

thus adequately explains the underinclusive nature of its use of

standard pat-downs in a manner that does not belie the

justifications cited for conducting the search.8

d. Irrational and Unfair Selection

Of course, if the selection criteria for follow-up

searches is invidious, then an otherwise reasonable search might

8
Ruskai points out that TSA’s interest in streamlining must
not be too great because it does not use the standard pat-down on
all occasions, such as when it pats down a PreChecked passenger.
That TSA’s pursuit of an interest has limits does not, however,
mean that the interest is invalid or without weight. Specifically,
the intent in streamlining is not belied by having two levels of
pat-down searches, one for those with PreCheck clearance and one
for those without such clearance. Adding a third option would, by
definition, move TSA further away from its goal of reducing the
number of search protocols.

-33-
indeed be susceptible to challenge. We certainly do not reject the

possibility that conducting an otherwise reasonable administrative

search in an unlawfully discriminatory manner might violate the

Fourth Amendment. Cf. Wayne LaFave, 5 Search & Seizure § 10.6(b)

(5th ed.) (in discussing profiling, suggesting that a screening

"program involving some degree of nonrandom selectivity can pass

Fourth Amendment muster only if the selection criteria tend to

identify suspicious people," and noting that the "central

considerations" for assessing non-random criteria should be whether

(1) some selection criteria is necessary to avoid overwhelming the

system and (2) "it reasonably appears that any other basis of

selection is not likely to work at least as well" (citations and

internal quotation marks omitted)); Brown v. City of Oneonta, 235

F.3d 769, 776 (2d Cir. 2000) (Walker, C.J., concurring in denial of

rehearing en banc)(noting that Fourth Amendment doctrine in some

ways protects against discriminatory enforcement). After all, to

constitute a valid administrative search, the government's search

procedure must be a reasonable tool for furthering its interest.

But Ruskai has not adequately presented a discrimination-focused

argument as part of her Fourth Amendment claim.9 Accordingly, we

9
Certainly, Ruskai argued in her petition that TSA's policy
is both overinclusive and underinclusive in that many are not fully
searched, and individuals with implants are repeatedly patted down
despite posing no objectively greater risk of terrorist activity.
But a general overbreadth or underbreadth argument is not the same
as a claim of invidious discrimination, and an overbreadth claim
likewise fails under the rationale of Earls.

-34-
defer further consideration of this principle to the evaluation of

her claim under the Rehabilitation Act, discussed below. Cf. Whren

v. United States, 517 U.S. 806, 813 (1996) (emphasizing that, while

the "Constitution prohibits selective enforcement of the law based

on considerations such as race," the primary constitutional basis

for that objection is the Equal Protection Clause10).

***

There is in this record admittedly some flavor of

bureaucratic inertia. Given the pertinent threats, however, it

seems that the inertia tends to result more in inadequate

screenings than in excessive screenings. In this regard, it is

remarkable that the administration and Congress have not yet

managed to achieve full AIT capability, and continue to allow large

numbers of passengers to board without any screening for

nonmetallic weapons. At the same time, though, TSA is a large

organization, and its task is daunting. Importantly, TSA itself

clearly finds the current status quo unacceptable, and assures us

that it is in the process of greatly reducing (though perhaps not

entirely eliminating) the aspects of its current program that

trouble Ruskai. Our review of how TSA conducts secondary searches

during this transition requires, in turn, some deference to TSA's

expertise regarding the nature of evolving threats, how people

10
Ruskai does not make an Equal Protection or selective
enforcement claim.

-35-
behave in airports, and the capabilities of TSA's workforce and

systems. Within reason, choosing which technique best serves the

government interest at stake should be left to those with a "unique

understanding of, and responsibility for, limited public

resources." Corbett, 767 F.3d at 1181 (quoting Sitz, 110 S. Ct. at

2487. And as the D.C. Circuit noted in assessing pre-ATR AIT

scanners, the Supreme Court has refused to declare only the least

intrusive practicable search reasonable under the Fourth Amendment,

and constitutional precedent does not demand that a search be

"minimally intrusive" in order to pass constitutional muster.

Elec. Privacy Info. Ctr., 653 F.3d at 10-11; see also Cassidy, 471

F.3d at 80.11

In sum, we conclude that the Fourth Amendment does not

prevent TSA from searching for both metallic and nonmetallic

weapons on passengers who trigger WTMD alarms just as it does on

passengers who decline to pass through AIT scanners. Accordingly,

Ruskai's Fourth Amendment claim fails.

B. Rehabilitation Act

Ruskai's next claim is that TSA's security screening

procedures discriminate against her in violation of section 504 of

the Rehabilitation Act of 1973, 29 U.S.C. § 794. Section 504(a)

provides that no otherwise qualified individual with a disability

11
We note, too, that TSA tested and rejected search techniques
more intensive than the standard pat-down.

-36-
"shall, solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity" receiving federal

funds. At issue is whether TSA procedures subject her to

discrimination under the meaning of the Act.

Ruskai makes no claim that TSA discriminates against her

intentionally in using the WTMD to select her as someone who must

pass a secondary screening before entering beyond the security

checkpoint. Nor could she. The WTMD is a facially neutral device

aimed at detecting metal, not disabilities. Many disabled persons

pass through it without triggering an alert. Many non-disabled

persons trigger an alert. Ruskai relies, instead, on a theory of

unintentional discrimination, which she describes as "disparate

impact." She claims–-and TSA does not seem to deny-–that most

persons who have a large metallic implant are selected by the WTMD

for a secondary search, while most people who do not have such an

implant are not selected. TSA also does not challenge Ruskai's

claim that she has a disability within the meaning of the Act. And

it presumes that many people with metallic implants are similarly

viewed as disabled--not because the implant itself is a disability,

but rather because they may have had a disabling condition for

which the metal is a "mitigating measure." 29 C.F.R.

§ 1630.2(j)(1)(v).

In Alexander v. Choate, 469 U.S. 287 (1985), the Supreme

-37-
Court considered the question "whether proof of discriminatory

animus is always required to establish a violation of section 504

and its implementing regulations, or whether federal law also

reaches action by a recipient of federal funding that discriminates

against the handicapped by effect rather than by design." Id. at

292. The Court "assume[d] without deciding that section 504

reaches at least some conduct that has an unjustifiable disparate

impact upon the handicapped." Id. at 299. At the same time, it

"reject[ed] the boundless notion that all disparate-impact showings

constitute prima facie cases under section 504." Id. The balance

struck by the Court was to focus on whether the government action

denied meaningful access to the government benefit at issue in the

case. Id. at 301-02.

In the ensuing three decades, the Supreme Court has not

revisited the issue of whether and when a section 504 claim can be

maintained in the absence of discriminatory animus. We

nevertheless think it well established that what the Court assumed

to be so is so--proof of discriminatory animus is not always

required in an action under section 504. See Enica v. Principi,

544 F.3d 328, 339 (1st Cir. 2008) (noting that "a showing of

discriminatory intent or animus is not required in cases alleging

a failure to accommodate"); cf. Higgins v. New Balance Athletic

Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) ("Unlike other

enumerated constructions of 'discriminate,' this construction does

-38-
not require that an employer's action be motivated by a

discriminatory animus directed at the disability . . . . [A]n

employer who knows of a disability yet fails to make reasonable

accommodations violates the [ADA], no matter what its intent,

unless it can show that the proposed accommodations would create

undue hardship for its business."). Indeed, DHS's own regulations

plainly provide that "[t]he Department may not . . . utilize

criteria or methods of administration the purpose or effect of

which would: (I) subject qualified individuals with a disability

to discrimination on the basis of disability." 6 C.F.R.

§ 15.30(b)(4). While acts of intentional discrimination certainly

occur, and are actionable, see Sumes v. Andres, 938 F. Supp. 9, 12

(D.D.C. 1996) (medical provider's failure to treat patient solely

because she was deaf constitutes discrimination under section 504),

the disability laws often have as their target action--or inaction-

-that "is primarily the result of apathetic attitudes rather than

affirmative animus." Alexander, 469 U.S. at 297. Thus, a classic

claim that an architectural barrier denies a disabled person

meaningful access to a public facility requires no proof of

discriminatory animus. See Ability Ctr. of Greater Toledo v. City

of Sandusky, 385 F.3d 901, 907-09 (6th Cir. 2004). Nor does it

require the type of sophisticated statistical evidence typical of

disparate impact claims in Title VII cases. Cf. Jones v. City of

Boston, 752 F.3d 38, 48-53 (1st Cir. 2014) (describing the use of

-39-
statistical analysis to show disparate racial impact as evidence of

employment discrimination).

When the Supreme Court assumed that a disparate impact

theory could apply in an action under section 504 in some

situations, the situation it identified was a case in which persons

with disabilities were denied meaningful access to a government

program or benefit. Alexander, 469 U.S. at 299. That exclusionary

situation may fairly be described as the primary target of section

504. Id. at 297. The problem for Ruskai is that she can point to

no government benefit, service, program, or facility to which TSA's

challenged conduct denies her meaningful access. Her complaint

trains only on those airport checkpoints that lack both AIT and

PreCheck capabilities. Even at these WTMD-only checkpoints, she

receives on each occasion full and complete access to the secure

side of the security checkpoints. She also receives full and

complete access to TSA's security screening program.

Additionally, Ruskai admits that TSA is certainly

entitled to require all passengers to walk through a WTMD, and that

it is entitled to conduct a secondary search of all who do not or

cannot pass through the WTMD without triggering an alarm. That is,

she does not challenge the selection device that inadvertently, by

detecting metal, generates the subset of passengers we assume to

include a disproportionate number of those who have disabilities.

Crucially, she also concedes that the secondary search itself does

-40-
not affect a person differently merely because the person has a

disability. In other words, the aspect of the secondary search to

which she objects is an aspect to which she would equally object if

she had no disability.

Ruskai points to no case law adopting the view that any

government conduct that affects a group that includes a

disproportionate number of persons with a disability (e.g., a group

of Medicare recipients, or hospital patients, or retirement resort

residents, etc.) must be free from any unpleasant effects, such as

dollar impact, waiting time, or lack of quality, unless those

effects are fundamental or necessary to the government's program.

And it is precisely this type of effect--neither connected to any

denial of access nor motivated by discriminatory intent--that

Alexander treats as outside section 504's target. Alexander, 469

U.S. at 299, 301-02. Specifically, Alexander rejected "the

boundless notion that all disparate-impact showings constitute

prima facie cases under section 504." Id. at 299. The Court

expressed the concern that because "the handicapped typically are

not similarly situated to the nonhandicapped," straightforward

application of disparate impact theory "could lead to a wholly

unwieldy administrative and adjudicative burden." Id. at 298

(citing Note, Employment Discrimination Against the Handicapped and

Section 504 of the Rehabilitation Act: An Essay on Legal

Evasiveness, 97 Harv. L. Rev. 997, 1008 (1984)); see also Patton

-41-
v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996) ("A facially

neutral government restriction does not deny 'meaningful access' to

the disabled simply because disabled persons are more likely to be

affected by it.") The "disparate impact" of which Ruskai complains

appears to be just this type of effect deemed to be insufficient.

Ultimately, we need not rest our holding on the foregoing

analysis, concerning which the case law is sparse. Rather,

Ruskai's argument on this appeal still fails even if we assume that

one might maintain a section 504 claim for unintentional

discrimination based on the imposition of a burden that does not

result in a loss of meaningful access to a government benefit,

service, program, or facility, and the effect of which is not

enhanced by the disability.

Our decision in Theriault v. Flynn, 162 F.3d 46 (1st Cir.

1998), is instructive. Theriault addressed a challenge under

Title II of the ADA to the New Hampshire Department of Motor

Vehicles's decision to require an individual with cerebral palsy

(who operated his car through hand controls but whose hands were

visibly shaking when he went to renew his driver's license) to take

an additional road test. Id. at 47. He passed that test, and was

issued a renewal license. Id. We concluded that the ADA's demand

for "meaningful access" was "not directly at issue" "as it [could

not] reasonably be argued that Theriault was denied 'meaningful

access' to a government benefit or program" because he received a

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license and New Hampshire did not prohibit him from doing so. Id.

at 48. Instead, we noted, Theriault's claim challenged "the method

used to determine access to the government benefit, and his

contention is that the extra eligibility requirement imposed upon

him . . . constituted discrimination based on his disability." Id.

In determining whether the imposition of an extra test on Theriault

as a condition to renewing a driver's license constituted unlawful

discrimination, the court focused on "the state's obligation in

balancing the rights of the disabled with the responsibility to

ensure safety on the roads." Id. at 49. Writing for the majority,

Judge Coffin reasoned that when symptoms of a disability

"concededly and objectively raise a concern about

qualifications . . . the public entity may engage in individualized

inquiry into whether the person is nonetheless qualified without

shouldering the burden of defending its 'discrimination' as

'necessary'." Id. at 50. In response to Theriault's argument that

the state had other, less burdensome ways of assessing his

qualifications to drive, the court pointed to weaknesses in those

alternatives, and concluded that the state "cannot be faulted for

erring on the side of caution when safety is at issue, providing,

of course, that the triggering judgment is based not on stereotypes

but on observable, relevant circumstances." Id.

A similar analysis applies here. Indeed, it applies a

fortiori given that TSA's selection of Ruskai for a standard pat-

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down was made with no awareness that she was disabled at all. The

aim of the standard pat-down was not to determine whether Ruskai

had a disability, but rather to determine whether she carried a

weapon. And, for the reasons stated in Part V.A of this opinion,

we have found that the selection of a screen designed to detect

both metallic and nonmetallic weapons to be reasonable. The

aspects of that screen of which Ruskai complains affect persons

with and without disabilities alike. And, once TSA determined she

carried no weapon, that very determination gained her access

through the checkpoint irrespective of any aspects of her

disability. Collectively, all of these considerations eliminate

the footings upon which a section 504 claim can stand. As Judge

Coffin observed in Theriault, "when the safety of the public at

large is implicated, public entities must be permitted some

latitude in their judgments that individualized assessments of

qualifications are necessary." Id.

Ruskai also contends that in order for us to find TSA's

use of the standard pat-down permissible as the principal secondary

search technique at WTMD sites, we must find the use of that

protocol "fundamental" to TSA's program. To that contention, we

make two responses.

First, as in Theriault, because Ruskai has not been

denied access to any program, etc., one could indeed conclude that

the government here need not prove that the alterations to its

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search protocols sought by Ruskai would result in a "fundamental

change" in the program, or that its chosen approach is "necessary."

Reasonableness may well be enough.

Second, even if reasonableness is not enough, what Ruskai

seeks would indeed seem to require fundamental alterations to TSA's

security program. She can point to no additional reasonable

accommodation that TSA could make so as to eliminate the burden of

which she complains without adversely affecting TSA's efforts to

efficiently deploy its resources to maintain airport security as it

transitions to targeting nonmetallic weapons. TSA has been

installing AIT scanners at more and more checkpoints. It has ample

reason to do so entirely apart from this lawsuit. In the interim,

to eliminate the disparate impact of which Ruskai complains, TSA

would have to stop searching everyone who triggers an alert at a

WTMD--abled and disabled alike--for nonmetallic weapons. Such a

change would require TSA to expand rather than reduce the use of

HHMDs, reduce the number of persons searched for nonmetallic

weapons, and eliminate the benefits in standardization, training,

and flexible personnel assignments that are achieved by using the

same standard pat-down procedure for WTMD and AIT alerts. Given

the extraordinary safety concerns at issue here, we cannot find

that TSA's current refusal to implement such significant changes

violates the Rehabilitation Act.

Alternatively, Ruskai argues that TSA could establish a

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nationwide protocol allowing the display of satisfactory medical

documentation to justify refusal of a standard pat-down. TSA's

PreCheck program already offers a broader exemption from the

standard pat-down, and TSA is expanding that program. In any

event, developing a program that would both establish a secure and

acceptable form of medical documentation and develop procedures and

information systems to confirm the authenticity of such

documentation at checkpoints would be a fundamental change in TSA

practice that strikes us as not required by reason, and very

possibly unwise.

We stress, too, that our judgment regarding TSA's

position places great weight on the fact that TSA's current program

calls for expanded use of the techniques--AIT scanners and

PreCheck--for which Ruskai advocates. In this respect, TSA and

Ruskai want the same end result. Much of the air travel system in

this country has been converted along these lines, decreasing the

likelihood that anyone--including Ruskai--will receive a standard

pat-down.

TSA assures us that it will continue to expand its use of

the preferred techniques, and the record provides no reason for us

to conclude otherwise. It is based on this understanding of TSA's

ongoing efforts to streamline its physical search protocols and to

reduce its reliance on legacy search technologies and techniques

that we are able to conclude that ordering further accommodations

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to be made now would require fundamental alterations.

C. Failure to Investigate

Ruskai also objects that TSA failed to adequately and

timely investigate her complaints. She notes that the APA

authorizes this court to "compel agency action unlawfully withheld

or unreasonably delayed" and "hold unlawful and set aside" agency

actions that are "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. § 706(1), (2).

Although there can be little dispute that the government's

performance in responding to petitioner's complaints was

unacceptably dismal, petitioner has made clear that she seeks

nothing from this portion of her petition (she affirmatively asks

us not to remand for reinvestigation, and only to address her claim

on the merits). Faced with the government's objection to her lack

of claim for relief, she merely reasserted that the agency action

was arbitrary and capricious, but again cited no relief that she

seeks. Accordingly, we address this claim no further.

VI. Conclusion

For the foregoing reasons, we deny Ruskai's petition asking

that we set aside the decision of the Transportation Security

Administration.

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